Kennards Self Storage Pty Limited v Campbelltown City Council

[2021] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kennards Self Storage Pty Limited v Campbelltown City Council [2021] NSWLEC 31

Hearing dates:

29-31 March 2021

Date of orders:

14 April 2021

Decision date:

14 April 2021

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development application No.1292/2018/DA-C (as last amended on 31 March 2021) for the construction of three, two storey buildings containing self-storage units and an office; two vehicular crossings across a main road reserve; internal driveway and associated carparking; business identification signage; removal of vegetation; biodiversity management, revegetation, regeneration and compensation measures through retirement of 2 biodiversity credits PCT 850; and earthworks on Lot 1211 in DP 1136122, Menangle Road, Campbelltown, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

(3) The exhibits may be returned, other than Exhibit A (including the revised Biodiversity Management Plan), Exhibit H (the amended architectural plans), Exhibit K (the amended Plan of Management), Exhibit L (the draft public positive covenant), Exhibit M (the amended stormwater and engineering plans) and Exhibit 17 (final conditions of consent).

Catchwords:

APPEAL – refusal of development application for self-storage unit facility – satisfaction of statutory conditions to grant of consent – resolution of contentions regarding traffic management and pedestrian safety, flooding and stormwater, urban design and visual impact, biodiversity management and impact on trees

Legislation Cited:

Biodiversity Conservation (Savings and Transitional) Regulation 2017

Campbelltown Local Environmental Plan 2015 cl 2.3, 7.1, 7.2

Conveyancing Act 1919 s 88E

Environmental Planning and Assessment Regulation 2000 cl 276

Roads Act 1993 (NSW) s 138

State Environmental Planning Policy – Remediation of Land cl 7

State Environmental Planning Policy (Infrastructure) 2007 cll 8, 101, 104

State Environmental Planning Policy (Major Infrastructure Corridors) 2020 cll 8, 9

State Environmental Planning Policy No 64 – Advertising and Signage cll 3, 4, 8

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Threatened Species Conservation Act 1995

Category:

Principal judgment

Parties:

Kennards Self Storage Pty Limited (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
Mr M Seymour (Applicant)
Ms K Gerathy (solicitor) (Respondent)

Solicitors:
Dentons (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2018/377630

Publication restriction:

Nil

Judgment

Application for consent for self storage unit facility

1. Kennards Self Storage Pty Limited (Kennards) seeks development consent to construct three, two storey buildings containing self-storage units and an office; business identification signage; two vehicular crossings across a main road reserve; internal driveway and associated carparking; removal of vegetation; biodiversity management, revegetation and compensation measures through retirement of 2 biodiversity credits PCT 850; and earthworks, on a vacant site on Menangle Road, Campbelltown. The site is a long, narrow strip of land between the main southern railway to the north and Menangle Road to the south.

2. The proposed self-storage unit facility has undergone multiple revisions since the development application was lodged on 27 April 2018. The most recent amendment of the application for development consent was allowed by the Court on the last day of the appeal against the refusal of Campbelltown City Council (the Council) of the development application. This latest amendment of the development application resolved all of the Council’s contentions, so that the Council accepted that consent should be granted on conditions. At the end of the hearing, the parties agreed upon the conditions that should be imposed on any consent granted by the Court.

3. I find that the development application as amended should be determined by the grant of consent subject to the agreed conditions. I will first explain why various statutory conditions to the determination of the development application by the granting of consent are satisfied; secondly, summarise how the concerns originally raised by the Council and continuing to be raised by local residents have been satisfactorily addressed; and thirdly, identify the conditions of consent that mitigate the environmental impacts of the development.

The statutory conditions to the grant of consent

4. The site is currently zoned partly B5 Business Development under Campbelltown Local Environmental Plan 2015 (CLEP) and partly SP2 Infrastructure under State Environmental Planning Policy (Major Infrastructure Corridors) 2020 (Corridors SEPP). Development for the purpose of self-storage units is permissible with consent in the B5 Business Development zone. Although development for the purpose of self-storage units is prohibited in the SP2 Infrastructure zone (cl 8(4) of the Corridors SEPP), such development may nevertheless be carried out with development consent as it is a development of a kind that could be carried out on the land under CLEP that applied immediately before the land was included within the future infrastructure corridor (cl 9(1) of the Corridors SEPP).

The conditions in CLEP

5. For the part of the development that is on land zoned B5 Business Development, CLEP imposes a number of conditions that must be satisfied before consent can be granted.

6. First, the consent authority must have regard to the objectives for development in the B5 Business Development zone, when determining the application (cl 2.3(2) of the CLEP). The objectives of the B5 Zone are:

“To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and support the viability of, centres.

To build and maintain the economic strength of existing centres by limiting retailing activity and discouraging office development.

To encourage the development and continuation of light industries and to enable their successful integration and co-existence with other uses permissible in the zone.

To provide for a range of facilities and services to meet the day-to-day needs of workers in the area.

To facilitate diverse and sustainable means of access and movement.”

The proposed self-storage unit facility is compatible with these objectives.

7. Secondly, CLEP sets height and floor space ratio development standards (cl 4.3 and cl 4.4) and the proposed development complies with these standards.

8. Thirdly, the proposed development involves ancillary earthworks, development consent is required (cl 7.1(2) of CLEP). In decided whether to grant development consent, the consent authority is required to consider the following matters:

“(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b)  the effect of the development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.” (cl 7.1(3) of CLEP).

9. The proposed earthworks include cut and fill throughout the eastern part of the site where the proposed buildings, driveway and carparking areas are to be constructed. The proposed earthworks and retaining walls are detailed in the amended Bulk Earthworks Plan and amended Site Plan.

10. The originally proposed earthworks were assessed in the Statement of Environmental Effects dated March 2018, which concluded that:

“The proposed earthworks are not likely to have adverse environmental impact as a result of the mitigating measures incorporated in the design, including stepped floor levels; suitable setbacks of retaining walls from the property boundaries, existing vegetation and drainage courses; as well as incorporation of suitable drainage.”

11. The amendments to the development have only lessened the adverse environmental impacts of the proposed earthworks. Insofar as the proposed earthworks have the potential to impact on drainage patterns, such impacts were assessed as having been satisfactorily addressed in the Stormwater Management Report dated 9 September 2020 by Mr Wilcox and a joint expert report of Messrs Wilcox, Biffin and Urszulak dated 18 March 2021.

12. Fourthly, the impact of the proposed development on flooding needs also to be considered. The site includes land at or below the flood planning level (cl 7.2(2) of CLEP). This is land at or below the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5m freeboard (cl 7.2(5) of CLEP). The Council, in its letter of 25 January 2018, confirmed that the site is a flood controlled lot with respect to the 1% Annual Exceedance Probability (AEP) flood due to mainstream flooding and overland flows through the site. Development consent must not be granted to development on such land unless the consent authority is satisfied that the development:

“(a)  is compatible with the flood hazard of the land, and

(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.” (cl 7.2(3) of CLEP).

13. The flooding and stormwater experts agreed, in their joint expert report of 18 March 2021, that the proposed development as detailed in the amended drawings, and subject to the proposed conditions of consent, will be “protected from mainstream, local catchment and overland flow aspects of flooding as required by Part 2.10 of DCP 2015 [Campbelltown (Sustainable City) Development Control Plan 2015], including Clauses 7.1 and 7.2 [of CLEP].” The experts also agreed that the amended drawings “will ensure that the development does not have an adverse impact on the surrounding properties in regards to flooding.”

14. Accordingly, I am satisfied that the proposed development (as amended) will meet each of the matters in cl 7.2(3) of CLEP.

The conditions in the Corridors SEPP

15. As I have noted, part of the development is on land zoned SP2 Infrastructure under the Corridors SEPP. The relevant infrastructure corridor proposed by Transport for NSW is the North South Rail Line and South West Rail Link Extension.

16. By operation of cl 9 of the Corridors SEPP, the proposed development may be carried out with development consent on land in the SP2 Infrastructure Zone but only if:

“(a) the development is of a kind that could be carried out on the land under an applicable environmental planning instrument immediately before the land was included within a future infrastructure corridor, and

(b) where the proposed development has a capital investment value of more than $200,000—Transport for NSW grants concurrence to the proposed development, and

(c) the development is consistent with the aims of this Policy.” (cl 9(1) of the Corridors SEPP).

17. Paragraph (a) is satisfied as the proposed development is of a kind (being for the purpose of self-storage units) that could be carried out on the land under CLEP that was applicable immediately before the land was included within a future infrastructure corridor (being the infrastructure corridor for the main southern railway).

18. As to paragraph (b), the proposed development has a capital investment value of more than $200,000 and Transport for NSW has granted concurrence to the proposed development. As required by cl 9(2)(a), the Council gave written notice of the development application to Transport for NSW. By letter dated 7 December 2020, Transport for NSW granted concurrence subject to conditions:

“The proposed development is unlikely to cause significant constraint or cost to the delivery of the future transport infrastructure. The applicant should be aware the development is within the corridor boundary and may be required to relocate in the future, to enable delivery of the future transport infrastructure. TfNSW request Council condition the applicant to continue to liaise with the Corridor Preservation team throughout the development process.”

19. In deciding to grant concurrence, Transport for NSW said it took into consideration the matters in cl 9(3) of the Corridors SEPP, being:

“(a) the need to carry out the proposed development on the land,

(b) the timing of carrying out the proposed development and the proposed timing for constructing infrastructure in the future infrastructure corridor,

(c) the likely additional cost of constructing infrastructure in the future infrastructure corridor resulting from the carrying out of the proposed development.”

20. As to paragraph (c), the aims of the Corridors SEPP are:

“(a) to identify land that is intended to be used in the future as an infrastructure corridor,

(b) to establish appropriate planning controls for the land for the following purposes—

(i) to allow the ongoing use and development of the land until it is needed for the future infrastructure corridor,

(ii) to protect the land from development that would adversely impact on or prevent the land from being used as an infrastructure corridor in the future.” (cl 3(a) and (b) of the Corridors SEPP).

21. The proposed development is consistent with these aims. The nature, extent and other features of the proposed development allow for the use of the land until it is needed for the future infrastructure corridor and will not adversely impact on or prevent the land from being used as an infrastructure corridor in the future. This was recognised by Transport for NSW in granting its concurrence.

The conditions in SEPP 55

22. State Environmental Planning Policy – Remediation of Land (SEPP 55) requires consideration of any contamination of the land proposed to be developed. Clause 7(1) precludes a consent authority from granting consent to the carrying out of any development on land unless:

“(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.” (cl 7(1) of SEPP 55).

23. The development application was accompanied by a Site Contamination Assessment dated 31 October 2019, which found that, although the soils are contaminated, they could be remediated by capping the site in concrete. In an addendum report dated 2 September 2020 further investigation and analysis of soil samples from the site revealed that: the concentrations of all potential contaminants within the soil samples were either below the laboratory limit of reporting or below the adopted human health risk and ecological criteria; no detectable concentrations of hydrocarbons were identified; asbestos was not detected; and concentrations of all pesticides tested were all below the laboratory limit of reporting.

24. Subsequently, the parties’ contamination experts, Mr Munnichs and Mr Rokobauer, in their joint expert report dated 18 February 2021, agreed that in fact the site was not contaminated and did not need remediation. The experts agreement is as follows:

“1. There is now sufficient information available to us to satisfy ourselves that the land is not contaminated and suitable for the proposed development in its current state (Clause 7(1) of SEPP 55).

2. In so far as Clause 7(2) of SEPP 55 applies to the development, we are satisfied that the totality of the contamination reports before the court satisfy the requirements of this clause.

3. The site does not warrant a remediation action plan as part of the proposed development application.

4. The construction phase of the development will need to be appropriately managed in relation to land contamination matters. In this regard, a construction management plan with appropriate provisions should be in place prior to the commencement of works and followed throughout those works. We are satisfied that such a plan can be required as a condition of development consent having regard to the nature, extent and significance of the contamination of the land.

5. The 'entire site' is not required to be capped to achieve satisfactory management of risk from (potential) contamination of the site. The extent of works proposed in the plan annexed to this report as Annexure C is satisfactory and we make no recommendation for further capping.”

25. The Council proposed conditions of consent incorporating the recommendations of the contamination experts.

26. Accordingly, I find that the site should not be considered to be contaminated, given the extremely low levels of contaminants detected, but that even if it were considered to be contaminated, it is suitable in its current state for the purpose of self-storage units for which the development is proposed to be carried out.

The conditions in the Advertising SEPP

27. State Environmental Planning Policy No 64 – Advertising and Signage (Advertising SEPP), cl 8, precludes a consent authority from granting development consent to an application to display signage unless the consent authority is satisfied:

“(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.” (cl 8 of Advertising SEPP).

28. “Signage” is defined in cl 4 of the Advertising SEPP:

“signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes—

(a)  building identification signs, and

(b)  business identification signs, and

(c)  advertisements to which Part 3 applies,

but does not include traffic signs or traffic control facilities.”

29. A “business identification sign” has the same meaning as in the Standard Instrument: cl 4(1) of the Advertising SEPP. That meaning, which is also in the Dictionary to CLEP, is:

“a sign—

(a) that indicates—

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not contain any advertising relating to a person who does not carry on business at the premises or place.”

30. The objectives of the Advertising SEPP in cl 3(1)(a) are:

“(a) to ensure that signage (including advertising)—

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish…”.

31. The assessment criteria in Schedule 1 to the Advertising SEPP concern: character of the area; special areas; views and vistas; streetscape, setting or landscape; site and building; associated devices and logos with advertisements and advertising structures; illumination; and safety.

31. The proposed development (as amended) proposes only signage that involves business identification signs, indicating the name of the business (Kennards Self Storage) and the nature of the business carried on at the premises (personal storage, business storage and box shop). Two wall business identification signs are proposed to be erected on Buildings A and B and one more building identification sign is proposed to be erected on Building C. Two facia signs are proposed on Building B in the vicinity of the office in the south western corner of the building, but no facia signs are proposed on Buildings A and C. There is one pylon sign located to the west of the entrance into the proposed development off Menangle Road. It will state the name of the business (Kennards Self Storage) and the nature of the business (personal storage, business storage and box shop). The lighting on the site will comply with the requirements of AS4282-1997 Control of the Obtrusive Effects of Outdoor Lighting. The illumination of any signage will be restricted after 9pm until 7am.

32. The proposed signage was assessed in the Statement of Environmental Effects dated March 2018, including by reference to the assessment criteria in Schedule 1 (Table 6 in Appendix C); the Addendum to the Statement of Environmental Effects dated 10 September 2020, including by reference to the assessment criteria in Schedule 1 (in an updated Appendix C); and the joint expert report dated 5 March 2021 of the planners, Mr Smith and Mr O’Connor. These assessments concluded that the proposed signage is reasonable and appropriate, consistent with the objectives in cl 3(1)(a) of the Advertising SEPP, and satisfies the assessment criteria in Sch 1 to the Advertising SEPP.

33. Proposed conditions of consent will regulate the business identification signs, including precluding other advertising and illumination of the signage between 9pm and 7am.

34. Having regard to the nature, extent, location and other features of the proposed signage, I am satisfied that the signage is consistent with the objectives in cl 3(1)(a) of the Advertising SEPP and satisfies the assessment criteria specified in Schedule 1 to the Advertising SEPP.

The conditions in the Infrastructure SEPP

36. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) imposes three conditions. First, cl 85 applies to the proposed development, as it is on land that is adjacent to the rail corridor of the main southern railway and involves one or more of the criteria in cl 85(1). Before determining a development application for development to which cl 85 applies, the consent authority must:

“(a) within 7 days after the application is made, give written notice of the application to the rail authority for the rail corridor, and

(b) take into consideration—

(i) any response to the notice that is received within 21 days after the notice is given, and

(ii) any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette.” (cl 85(2) of the Infrastructure SEPP).

37. The Council gave notice of the development application to the rail authority for the rail corridor. Sydney Trains, as delegate of the rail authority, responded to the notice by letter dated 30 October 2020, advising that it did not oppose the grant of consent to the proposed development but requested the imposition of the conditions of consent provided in Attachment A to the letter.

38. Second, cl 101 of the Infrastructure SEPP precludes the consent authority from granting consent to development on land that has frontage to a classified road unless it is satisfied that:

“(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.” (cl 101(2) of the Infrastructure SEPP).

39. The site of the proposed development has frontage to Menangle Road, which is a classified road (main road No 179).

40. Third, cl 104 of the Infrastructure SEPP applies to the proposed development, being for a purpose specified in Column 1 of the Table to Schedule 3: cl 104(1). Before determining a development application for development to which cl 104 applies, the consent authority must:

“(a) give written notice of the application to TfNSW within 7 days after the application is made, and

(b) take into consideration—

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including—

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.” (cl 104(3) of Infrastructure SEPP).

41. The Council gave notice to Transport for NSW of various forms of the development application. Transport for NSW did not support the earlier forms of development, largely because of the unsatisfactory access to and from Menangle Road. Transport for NSW required that there be one left in driveway and one left out driveway, connected by an internal road, to access the proposed development and that the left in and left out driveways be enforced by a central median in Menangle Road.

42. The impact of the development as originally proposed was assessed in the Statement of Environmental Effects dated March 2018 and the accompanying traffic assessment report. Those assessments noted that there is no alternative road access available for the site other than from Menangle Road. The proposed access to and from the site was assessed as being suitable and would not unreasonably impact on the classified road as a result of queuing or congestion.

43. With the amendment of the development application, including by restricting the access to be left in and left out, enforced by a central median in Menangle Road, a new traffic report was prepared by Mr Rogers, dated September 2020. That report concluded:

“i) the proposed development is accessible by public transport;

ii) the proposed parking provision is appropriate;

iii) access arrangements are consistent with those suggested by TfNSW;

iv) access, internal circulation and layout will be provided in accordance with AS2890.1:2004 and AS2890.6-2009;

v) the proposed development will have a minor traffic generation of 10 vehicles per hour, two way; and

vi) such a low traffic generation would not have noticeable effects on the surrounding road network.”

44. On 19 November 2020, Transport for NSW, having reviewed the amended plans, advised that it would “provide concurrence to the proposed separate entry and exit driveways on Menangle Road under s 138 of the Roads Act 1993 (NSW), subject to Council’s approval and the following conditions being included in the development consent” and then specified the conditions.

45. Joint conferencing between the parties’ traffic experts led to further amendments of the access, internal circulation and parking arrangements. In their joint expert report dated 5 March 2021, Mr Rogers and Mr Urszulak agreed that the proposed development (as amended) is a low traffic generating development (expected peak hour traffic generation of 10 vehicles per hour, two way) and will not adversely affect the safety, efficiency and ongoing operation of Menangle Road. The experts noted that Transport for NSW had now granted concurrence to the amended development. The experts agreed that the matters in cl 101(2) and cl 104(3)(b) had been satisfied.

46. After further joint conferencing, the traffic experts also agreed on further amendment of the internal pedestrian and vehicular circulation and parking arrangements, which resolved the remaining outstanding issues concerning the internal pedestrian and vehicular arrangements. The application for development consent was duly amended to incorporate these changed arrangements agreed by the traffic experts. The traffic experts agreed that the amended internal pedestrian and vehicular arrangements are satisfactory for a self-storage unit facility that generates low traffic and pedestrian activity and requires a high level of accessibility.

47. In terms of the matters in cl 101(2) of the Infrastructure SEPP, I am satisfied that:

1. there is no alternative access to the site of the proposed development other than the classified road of Menangle Road;

2. the safety, efficiency and ongoing operation of Menangle Road will not be adversely affected by the proposed development (as amended) as a result of:

1. the design of the vehicular access to the land, being left in, left out with a central median in Menangle Road;

2. the emission of smoke or dust from the development (there will be none); or

3. the nature, volume or frequency of vehicles using Menangle Road to gain access to the land (up to 10 vehicles per hour, two way); and

3. the proposed development of self-storage units is of a type that is not sensitive to traffic noise or vehicular emissions.

48. In terms of the matters in cl 104(3) of the Infrastructure SEPP:

1. written notice the application has been given to Transport for NSW;

2. I have taken into consideration that:

1. Transport for NSW has granted its concurrence to the proposed entry and exit driveways to Menangle Road, subject to its requested conditions of consent being imposed;

2. access and accessibility of the site have been satisfactorily resolved by the amended plans; and

3. any potential traffic safety, road congestion or parking implications of the proposed development have been satisfactorily resolved by the amended plans.

No conditions in the Growth Centres SEPP

49. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP), although potentially applicable, is not in fact applicable. The site is located within the recently declared Greater Macarthur Growth Area. However, the Minister has not, for the purposes of the Growth Centres SEPP, declared the release of any precinct (or part of a precinct) in the Greater Macarthur Growth Area for urban development under cl 276 of the Environmental Planning and Assessment Regulations 2000. As a consequence, cl 17 of the Growth Centres SEPP does not apply so as to require the referral of the development application to the Department for comment or the consent authority to take any such comments into consideration when determining the development application.

The conditions in the CDCP

50. Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP) applies to the proposed development of the site. The Council has not pressed any contention concerning non-compliance of the proposed development (as amended) with any provision of this development control plan.

51. The proposed development does not comply with two building setbacks required under s 6.4.1.2 Building Setbacks of CDCP, the first being a setback of 30m to the main southern railway corridor and the second being a setback of 10m from any primary street frontage (in this case, Menangle Road). The development application included a submission to vary the building setbacks given the exceptional circumstances of the site:

“The site is unique, being a narrow tract of land wedged between a classified road and the railway corridor, with a long street frontage, but only a shallow depth. These site attributes, coupled with the nature of the development, being a development for storage purposes, make the circumstances unique. The variations in these circumstances are therefore unlikely to erode the application of the setbacks in usual circumstances.”

52. The Council accepted the appropriateness of varying the building setbacks for the proposed development in these unique circumstances. I agree.

The environmental impacts of the development are acceptable

53. The Council originally raised 15 contentions as to why the development application should be refused:

(1) Corridors SEPP: Development consent cannot be granted to the application unless the Court is satisfied of the matters in cl 9 of the Corridors SEPP.

(2) and (3) Main road works: Concurrence has not been granted by Transport for NSW to the access to and from Menangle Road.

(4) Impacts on Cumberland Plain Woodland: The adequacy of the proposed compensation measures/offsets for the impacts on the critically endangered ecological community of Cumberland Plain Woodland and on hollow-bearing trees had not been appropriately demonstrated.

(5) Ecological assessment: The application has failed to adequately assess the biodiversity values of the site and the impacts on these values and establish that the development will not result in a significant impact on the Cumberland Plain Woodland on the site.

(6) Biodiversity Management Plan: The submitted Biodiversity Management Plan contains insufficient information and is inadequate.

(7) Arboriculture assessment: The submitted Tree Inspection Assessment contains inadequate information on the impacts on trees proposed to be retained and the measures to minimise these impacts.

(8) Design quality – external: The development would adversely impact upon the existing and future desired streetscape, be visually obtrusive in the streetscape and out of character with the adjoining residential zone.

(9) Traffic management and pedestrian safety: The application does not provide a satisfactory traffic management solution and the proposed vehicular ingress and egress, and movement within the site, is unacceptable.

(10) Flooding: The proposed development does not consider the flooding implications of the site and is unacceptable.

(11) Stormwater: The application does not provide sufficient information in relation to the management and disposal of stormwater.

(12) Impact on water quality: The application does not include sufficient information in relation to whether the development will have an adverse impact on water quality by stormwater being discharged from the site.

(13) Contamination and remediation of the site: The application does not provide a satisfactory basis for the consent authority to be satisfied of the matters in cl 7(1) of SEPP 65.

(14) Public interest: The application should be refused having regard to the matters raised in public submissions that are consistent with the contentions of the Council.

(15) Advertising signage: The application is inconsistent with the objectives and does not satisfy the assessment criteria of the Advertising SEPP.

54. As a result of the various amendments of the application for development consent and the joint conferencing and agreements of the various disciplines of experts, all of these contentions were resolved to the satisfaction of the Council. The Council no longer pressed any of these contentions and instead accepted that the development consent should be granted on the agreed conditions. I will briefly explain how all of these contentions have been satisfactorily resolved.

Corridors SEPP

55. The proposed development (as amended) is consistent with the aims of the Corridors SEPP. The proposed development is an appropriate use of the land until the land is needed for the future infrastructure corridor and will not adversely impact on or prevent the land from being used as an infrastructure corridor in the future.

56. Transport for NSW has granted concurrence to the proposed development. In deciding to grant concurrence, Transport for NSW took into consideration the need to carry out the proposed development on the land, the timing of carrying out the proposed development and the proposed timing for constructing infrastructure in the future infrastructure corridor and the likely additional cost of constructing infrastructure in the future infrastructure corridor resulting from the carrying out of the proposed development (cl 9(3) of the Corridors SEPP).

57. Accordingly, the matters in cl 9(1) and (2) of the Corridors SEPP are satisfied, which resolves contention 1.

Main road works

58. Although Transport for NSW was opposed to earlier forms of the proposed development, after the development was amended to restrict access to be left in from and left out to Menangle Road, with a central median to be constructed in Menangle Road to enforce the left in, left out access, Transport for NSW changed its position. It indicated it would provide concurrence to the proposed separate entry and exit driveways on Menangle Road under s 138 of the Roads Act and requested the Council impose specified conditions on the development consent.

59. In this circumstance, there is certainty that development consent to the amended development will result in a development capable of being carried out as proposed. Contentions 2 and 3 are thereby resolved.

Impacts on Cumberland Plain Woodland

60. Most of the vegetation on the site comprises the critically endangered ecological community of Cumberland Plain Woodland (CPW), although some of the vegetation comprises weeds and exotics. The parties’ ecologists, Dr Robertson and Ms Taylor, have agreed, in their joint expert report dated 16 March 2021, that vegetation removal, including 19 trees, will involve 0.1ha of clearing, of a site area of 1.7ha. The Flora and Fauna Assessment dated 21 August 2020 and the revised Flora and Fauna Assessment dated 15 March 2021 undertook tests of significance under the Threatened Species Conservation Act 1995, as the development application was submitted under the transitional arrangements of the Biodiversity Conservation (Savings and Transitional) Regulation 2017. The tests concluded that neither the originally proposed development nor the amended development was likely to significantly affect CPW on the site. Accordingly, a species impact statement was not required. The ecology experts reviewed these assessments and agreed that the proposed development (as amended) will not result in a significant impact to CPW.

61. The Flora and Fauna Assessment dated 21 August 2020 proposed the purchase and retirement of two ecosystem credits in order to offset the impact of clearing of CPW on the site. Since that time, revised cut and fill/bulk earthworks for the development has led to some additional trees needing to be removed. The ecology experts reviewed the amended development and confirmed that the purchase and retirement of two ecosystem credits would be adequate to cover the impact of the proposed development (as amended) on CPW on the site.

62. The ecology experts reviewed and agreed upon a revised Biodiversity Management Plan dated 15 March 2021 (BMP). The BMP requires vegetated areas in the western part of the site (around 0.9ha) to be conserved and restored onsite, and protected in perpetuity by a public positive covenant registered on title under s 88E of the Conveyancing Act 1919. Conditions of consent would require implementation of the BMP and registration of the public positive covenant to ensure the conservation in perpetuity of the retained CPW on the site.

63. The ecology experts explained how the proposed compensation measures/offsets satisfy principles for biodiversity offsets. First, the proposal satisfies the mitigation hierarchy of avoid, mitigate and compensate/offset. Clearing of most of the vegetation on the site has been avoided by the design of the project (only 0.1ha of CPW of the 1.7ha of the site is to be cleared). Unavoidable impacts are minimised through the mitigation measures set out in the revised BMP. The BMP will require weeding and replanting to improve the quality of the ground stratum and understory of CPW on the site. Offsetting is proposed to address the residual and unavoidable impacts. Two ecosystem credits are proposed to be purchased and retired, which will more than offset the impacts of the loss of 0.1ha of CPW.

60. These offset credits have been calculated using the latest Biodiversity Assessment Method Credit Calculator using data collected on site. The two ecosystem credits proposed to be purchased and retired specifically target CPW of the variant that occurs on the site. The ecosystem credits are proposed to be PCT (Plant Community Type) 850 – Grey Box – Forest Red Gum grassy woodland on shale of the Southern Cumberland Plain, Sydney Basin bioregion credits. The offsets proposed do not overlap with other legal requirements and are additional. The proposed conservation area onsite and the BMP proposed to manage the area will be required by conditions of consent and will be auditable and enforceable. A public positive covenant will be registered on title to ensure its conservation in perpetuity.

61. The ecology experts also agreed the proposed development (as amended) will involve the removal of one hollow-bearing tree and two stags (dead trees) and that the BMP needs to be updated to reflect the removal of the two stags. A condition of consent is proposed to require the BMP to be revised accordingly. The amended BMP proposes to offset the loss of one hollow at a ratio of 4:1, which the experts regarded as a sufficient hollow offset.

62. In light of this evidence, the Council no longer pressed contention 4. I agree. The impacts on CPW and hollow-bearing trees have been adequately assessed and addressed by the proposed avoidance, mitigation and offset measures.

Ecological assessment

67. For the reasons given above, the revised Flora and Fauna Assessment and the revised BMP, as well as the joint expert report of the ecologists, adequately assess the biodiversity values of the site and the impact of the proposed development (as amended) on these values. Contention 5 has been resolved.

Biodiversity Management Plan

68. The Biodiversity Management Plan has been revised to reflect the amended development and the recommendations of the ecology experts. Conditions of consent will require the revised Biodiversity Management Plan dated 15 March 2021 to be implemented onsite in perpetuity. This resolves contention 6.

Arboriculture assessment

69. The arborists, Mr Hare and Mr King, agreed in their joint expert reports dated 17 February 2021, 5 March 2021 and 16 March 2021 that the revision of the cut and fill/bulk earthworks for the proposed development changed the number of trees that would be required to be cleared to 19, but enabled the retention of 16 trees in the eastern part of the site that is proposed to be developed.

70. The arborists recommended, and a proposed condition of consent will require, the preparation of a detailed, site-specific tree protection plan detailing, amongst other matters, the tree protection matters required to be undertaken throughout all stages of the development.

71. In these circumstances, contention 7 has been resolved.

External design quality

72. As a result of joint conferencing between the urban design and visual impact experts, Mr Johannsen, Dr Lamb and Mr Dickson, the architectural design and materials of the proposed buildings were revised to be less visually obtrusive in the streetscape than the original proposal.

73. One important modification involved opening up of the view corridor along Fairchild Road (in the adjoining residential area) across the site to the fields and hills to the north, by moving Building B around two metres to the east, thereby increasing the separation between Buildings A and B.

74. Another important modification involved reducing the extent and location of the branding colour scheme and reflective glazing on Building B. Kennards’ branding colours are bright orange and blue. The modifications reduce significantly the extent of the use of the orange and blue branding colours on the walls of Building B, and replace them with recessive, non-branding colours, such as brown, grey and black colours. This was clearly illustrated on the amended south and west elevations of Building B. The extent of glazing to the corner of the reception and administration areas of Building B was also significantly reduced, again as shown in the south and west elevations of Building B. The result is to confine the use of the branding colours primarily to the southwestern corner of Building B in the office and administration area, although there are some small frames with branding colours at the south eastern end of the building.

75. The experts agreed that these modifications of colours and glazing make the visual impacts of Building B more recessive and reduce the perception of monumental appearance of the building. Photomontages had been prepared using earlier forms of the proposed development. The experts explained how the modifications would reduce the visual impacts of the buildings from the various viewpoints used in the photomontages. The visual impact of Building B, viewed from Menangle Road both facing west and facing east, would be significantly mitigated by the change in colours and materials from the dominant branding colours to the recessive non-branding colours and the reduction in glazing. The visual impact of Building B, viewed from the residences in Carlton Road closer to the corner with Menangle Road, will also be mitigated by the change from branding to non-branding colours and the reduction in glazing. The southwestern corner of Building B will still be seen from these residential view points, but the colours and materials will be more recessive and thereby reduce the perception of visual impacts.

76. The increased separation between Buildings A and B, by moving Building B two metres to the east, will also open up the view corridor for residences on Padua Lane and Fairchild Road, thereby lessening the visual impact of the buildings from these residences.

77. In addition, there was the modification of signage, including prohibiting illumination of signage between 9pm and 7am, which will mitigate visual impact at night.

78. As a result of the modifications of the development, the urban design and visual impact experts agreed that the external desired quality of the proposed development was appropriate and would not unacceptably impact on the existing and future desired streetscape, and that contention 8 was therefore addressed.

79. I agree. The modifications mitigate the impacts on view corridors and the visual obtrusiveness of the buildings in the streetscape. The development does involve the erection of three buildings on a vegetated site where there are currently no buildings. However, development of some kind on the site was always to be expected. The site is partly zoned B5 Business Development under CLEP, so that business buildings are to be expected to be erected on the site. One of the permissible business purposes is self-storage units. The proposed development for self-storage units is therefore an expected use of the site.

80. The amended development splits the built form for the self-storage unit facility into three buildings, each of two storeys, and articulates the facades, thereby breaking up the bulk and scale of the built form. As a result of the modifications, the buildings will primarily be of recessive colours and materials, with only limited use of branding colours and glazing. The buildings will be able to be seen in the streetscape, from both Menangle Road and the residential areas to the south of the site, but they will not be dominant or out of character. The separation of the three buildings preserves view corridors and vistas from the residential areas along Hidcote Road (between Buildings B and C) and Fairchild Road (between Buildings A and B).

81. Existing trees along Menangle Road will be retained, and supplemented by landscaping around the three buildings. The existing CPW to the west of the buildings will be retained and augmented in a conservation area. The existing vegetation and proposed landscaping will assist in mitigating the visual impact of the buildings. Condition 8 has been resolved.

Traffic management and pedestrian safety

82. Previous forms of the proposed development raised both external and internal traffic management issues. The external traffic management issue concerned vehicular ingress from and egress to Menangle Road. This issue was resolved by the amendment of the development to allow only left in, left out access, enforced by a central median in Menangle Road. Transport for NSW has concurred with this access arrangement.

83. The internal traffic management issue concerned vehicular and pedestrian movement within the site, including manoeuvrability of vehicles and vehicle/pedestrian conflict. The parties’ traffic experts, Mr Rogers and Mr Urszulak, jointly conferred and agreed upon amendment of the internal vehicular and pedestrian circulation and parking arrangements to address these concerns. The application for development consent was duly amended to incorporate the experts’ recommended changes.

84. The amendments involved, first, redesign of the internal driveway from the entry off Menangle Road between buildings A and B to the exit to Menangle Road between buildings B and C so as to ensure that vehicles of the size and length expected to access the site can safely manoeuvre and park onsite. The vehicle swept paths were checked for the driveway after Building B was moved two metres eastward, as recommended by the urban design and visual impact experts.

85. Secondly, all parking to the north of the storage units in Building B was removed and replacement parking was located to the east of Building B and to the west of Building C. Thirdly, the parking to the west of Building B, near to the office and administration area, was moved two metres eastwards, corresponding with the eastwards movement of Building B.

86. Fourthly, a dedicated and designated pedestrian footpath was included, starting at Building C, across a pedestrian crossing over the driveway to Building B, running adjacent to the northern wall of Building B but removed from the driveway, and across a second pedestrian crossing over the driveway to reach Building A.

87. The traffic experts agreed that these amendments resolve the internal traffic management and pedestrian safety issues.

88. Accordingly, the various amendments to the application for development consent have resolved both the external and internal traffic management issues. Contention 9 is thereby resolved.

Flooding, stormwater and water quality

89. The Council raised three issues, contentions 10, 11 and 12, concerning the sufficiency of information on the development’s impacts on flooding, stormwater and water quality. As a result of joint conferencing between the water experts, Messrs Wilcox, Biffin and Urszulak, further drawings were submitted and flood modelling undertaken to demonstrate that all flooding, stormwater and water quality concerns could be addressed.

90. The experts agreed, in their joint expert report dated 18 March 2021, that:

1. Flooding: The amended drawings and the flood modelling undertaken demonstrate that the project can be constructed in a manner that adequately addresses the concerns raised in Contention 9; the development is protected from mainstream, local catchment and overland flow aspects of flooding; and the development will not have an adverse impact on the surrounding properties in regards to flooding;

2. Stormwater: The amended drawings, and the MUSIC model submitted, adequately address the concerns raised in contention 10; the development application, including the amended drawings, is supported by MUSIC and Flood Models; and the amended drawings demonstrate that water cycle management appropriately responds to site and water catchment objectives and has the potential to meet the requirements of Council’s Engineering Design Guide for Development and other relevant best practice engineering guides upon further detailed engineering design and meeting conditions of consent;

3. Impact on water quality: The amended drawings, and the MUSIC model submitted, adequately address the concerns raised in contention 12; the development application, including the amended drawings, is supported by MUSIC and Flood Models; and the amended drawings demonstrate that water cycle management appropriately responds to site and water catchment objectives and has the potential to meet requirements of Council’s Engineering Design Guide for Development and other relevant best practice engineering guides upon further detailed engineering design and meeting conditions of consent.

91. The proposed conditions of consent incorporate the recommendations of the experts. In these ways, contentions 10, 11 and 12 are resolved.

Contamination and remediation of the site

92. The contamination experts, Mr Munnichs and Mr Rokobauer, agreed in the joint expert report dated 18 February 2021 that the site is not contaminated and is suitable for the proposed development in its current state. Conditions of consent are proposed to deal with any unforeseen contamination that might be identified in carrying out the development. Contention 13 is resolved.

Public interest and public submissions

93. The Council raised, in contention 14 concerning the public interest, the matters raised by residents in their submissions objecting to the development, to the extent that these matters are consistent with the contentions raised by the Council. The Council tendered all of the public submissions and called two residents to give evidence at the hearing, Mrs Georgopoulos and Mrs McPhilips. Mrs Georgopoulos raised concerns about the clearing of trees and the consequential impact on wildlife and amenity; the inappropriateness of an industrial facility in a residential area; the visual intrusion of the self-storage unit facility; the impact on traffic congestion and road safety; and increased crime as a result of visitors using the self-storage unit facility. Mrs McPhilips, who resides nearby in Carlton Road, expressed concern that the self-storage unit facility is not needed by residents in the local area as they have adequate storage space in their own homes; does not belong in a quiet residential area and will not blend with the surrounding area; will be an awful orange and black colour which will not match the colour of the trees and surrounding area; will operate 24/7 and disturb the amenity of the area; will increase traffic congestion on Menangle Road; may bring crime by people storing inappropriate things in the facility; and will impact on the wildlife of the area by reason of clearing of trees.

94. Most of these concerns were raised by the Council in its contentions and have been addressed by the various amendments of the proposed development and the proposed conditions of consent. For the reasons I have given earlier, I find that the proposed development as amended is not likely to cause unacceptable impacts on biodiversity or wildlife, the amenity or streetscape of the neighbouring residential area, view corridors or vistas, or traffic flows and road safety.

95. The concern raised about the likelihood of increased crime by visitors using the self-storage unit facility is speculative and without evidentiary foundation. Indeed, the evidence is to the contrary. Kennard’s consultant planner, Mr Quinlan, undertook an assessment, in a report dated 22 March 2018, of the crime risk associated with the construction and use of the self-storage facility. The report found that the facility has been designed to prevent crime by incorporating appropriate night lighting, security fencing and secure access; car park design and layout with high visibility; and site and building layout and landscaping as well as security devices such as CCTV cameras to assist in crime deterrence and prevention. The design of the facility will thereby create an environment that will dissuade offenders from committing crimes by manipulating the built environment in which those crimes occur.

96. Accordingly, I do not find that any of the matters raised in public submissions determinative of the application. Contention 14 has been addressed.

Advertising and signage

97. The development (as amended) proposed only business identification signage and no other advertising. The business identification signage has been assessed and found to be consistent with the objectives of the Advertising SEPP and to satisfy the assessment criteria specified in Sch 1 to the Advertising SEPP. The proposed conditions of consent will prohibit illumination of the signage between 9pm and 7am, thereby minimising visual intrusion at night. Contention 15 has been resolved.

Conditions of consent

98. The parties agreed, and filed with the Court after the hearing, conditions of consent that reference the most recent amendments to the plans, drawings and management plans; incorporate the recommendations of the various disciplines of experts; and include the general terms of approval notified by various government agencies.

99. I have reviewed the final version of the conditions of consent. I find that, with some minor improvements in language, they are appropriate to be imposed as conditions on the grant of consent to the proposed development as amended.

Orders

100. The Court orders:

1. The appeal is upheld.

2. Development application No.1292/2018/DA-C (as last amended on 31 March 2021) for the construction of three, two storey buildings containing self-storage units and an office; two vehicular crossings across a main road reserve; internal driveway and associated carparking; business identification signage; removal of vegetation; biodiversity management, revegetation, regeneration and compensation measures through retirement of 2 biodiversity credits PCT 850; and earthworks on Lot 1211 in DP 1136122, Menangle Road, Campbelltown, is determined by the grant of consent subject to conditions, in accordance with Annexure A.

3. The exhibits may be returned, other than Exhibit A (including the revised Biodiversity Management Plan), Exhibit H (the amended architectural plans), Exhibit K (the amended Plan of Management), Exhibit L (the draft public positive covenant), Exhibit M (the amended stormwater and engineering plans) and Exhibit 17 (final conditions of consent).

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2018.377630 Annexure A Kennards Self Storage v Campbelltown City Council (554775, pdf)

Decision last updated: 14 April 2021